Citation Nr: 1609502	
Decision Date: 03/09/16    Archive Date: 03/15/16

DOCKET NO.  14-25 436	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to an increased rate of improved death pension benefits.


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The appellant is the surviving spouse of the Veteran who had active service from May 1942 until December 1946, and who died in August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Pension Maintenance Center (PMC) in St. Paul, Minnesota. The claims folder was sent to the Board by the VA Regional Office (RO) in St. Paul, Minnesota.


FINDING OF FACT

The appellant receives the maximum improved death pension amount based upon zero countable annual income.


CONCLUSION OF LAW

The appellant is not entitled to an increased rate of improved death pension benefits. 38 U.S.C.A. § 1541 (West 2014); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The VCAA and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). With regard to the claims decided herein, the VCAA does not apply. As explained below, this claim must be denied as a matter of law because undisputed facts, when applied to the controlling law and regulations, render the appellant ineligible for the additional benefit sought. The U.S. Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. The Court has recognized that enactment of the VCAA does not affect matters on appeal from the Board when the questions are limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).

Legal criteria

Death pension benefits are based on income. Payments of these pension benefits are made at a specified annual maximum rate, reduced on a dollar-for-dollar basis by annualized countable income. 38 U.S.C.A. §§ 1503, 1521 (West 2014); 38 C.F.R. §§ 3.3, 3.24 (2015). Medical expenses in excess of five percent of the maximum income rate allowable, which have been paid, may be excluded from an individual's income for the same 12-month annualization period; to the extent they were paid. 38 C.F.R. § 3.272(g)(1)(iii). 

The rates of death pension benefits are published in tabular form in appendix B of Veterans Benefits Administration Manual M21-1 (M21-1), and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21 (2015).

Analysis

The appellant is requesting increased improved death pension benefits. It is argued that the appellant's current medical and physical expenses have increased, and that the current pension award does not adequately pay living expenses and for obtaining medical care. (See January 2014 statement in support of claim). In April 2014, the PMC informed the appellant that she was paid the maximum amount of monthly pension benefits, and that an increase was not warranted.

The appellant is in receipt of the maximum allowed for improved death pension payments. Most recently, the record shows that in the appellant's pension award was amended and that effective December 1, 2014 she would be receiving $719.00 monthly, the maximum rate available at that time. The appellant reports no current income. Thus her pension amount was based a finding of no countable annual income and the maximum rate of $8,628.00 annually was awarded. See M21-1, part I, Appendix B. Therefore, the appellant's award was based upon zero annual countable income. The PMC has reported that the appellant continues to receive the maximum allowable pension award.

The appellant is arguing that additional medical expenses living expenses should be taken into account in calculating her death pension benefit. As noted, her award, is based on income, and not medical expenses alone. Consequently, whether her pension rate is calculated based on medical expenses, or of some higher dollar amount, her monthly pension rate would not change, as it still would be based on a countable income of zero dollars, and not the cost of medical care. There is nothing in the record to indicate that this would not be true and there is no legal basis shown upon which she could receive an increased rate of improved death pension benefits, beyond the maximum she currently receives. While the Board sympathizes with the appellant regarding the increased cost of her medical care, she is receiving the maximum payment allowable under the law. Since the law and not the evidence is dispositive with respect to this issue, the appeal is must be denied due to absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994).

In this case, the law is determinative of the issue considered on appeal, which was denied due to absence of legal merit. Accordingly, VCAA is not applicable to this issue, and no further action is necessary for compliance with the VCAA. Mason v. Principi, 16 Vet. App. 129, 132 (2002) (because the law, and not the evidence, is dispositive of this claim, the VCAA is not applicable).



ORDER

An increased rate of improved death pension benefits is denied.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs